By Eric J. Conn, Dan C. Deacon, and Beeta B. Lashkari

As the world continues to focus its attention on all things COVID-19 related – especially as the Centers for Disease Control and Prevention learns more and more about the virus and updates its guidelines — earlier this month, OSHA quietly published a treasure trove of employer injury and illness data as part of its Tracking of Workplace Injuries and Illnesses Rule (aka the “E-Recordkeeping Rule”).  The move comes after numerous attempts by OSHA under the Trump Administration to delay and narrow the requirements set forth in the original E-Recordkeeping Rule promulgated by OSHA in May 2016 during the final year of the Obama Administration, and also attempts by Trump’s OSHA to withhold from disclosure, even pursuant to FOIA requests, the injury and illness data collected pursuant to the Rule since 2016.

History of E-Recordkeeping Rule

The current version of the E-Recordkeeping Rule has undergone some changes and revisions, and indeed, as we previously posted here on the OSHA Defense Report, the Rule has had a long and tortured history.  Before promulgation of the E-Recordkeeping Rule, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employer injury and illness recordkeeping data was maintained internally by employers.  In a major policy shift, on May 11, 2016, President Obama’s OSHA enacted the E-Recordkeeping Rule, requiring hundreds of thousands of workplaces to submit injury and illness data through OSHA’s Injury Tracking Application (“ITA”).  At that time, the Rule also included a provision in which employer injury and illness data would be made available to the public on a searchable online database without scrubbing employer names or location details.

More specifically, the 2016 E-Recordkeeping Rule required:

1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries;
2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only;
3. All submissions to be done electronically, via a purportedly secure OSHA website portal; and
4. Employer’s injury data to be publicized in a “user-friendly” database for all the world to see.

There were numerous legal challenges to the Rule, some of which are still being litigated.  For example, in National Association of Home Builders v. Acosta, Industry opponents of the E-Recordkeeping Rule brought a legal challenge to the electronic data submission and intended publication elements of the rule.  A stay was granted on July 10, 2017 because the new Trump Administration indicated its intent to reopen the rulemaking to either rescind or amend the Rule.

After a couple of years of informal changes through guidance, extended deadlines, legal challenges, and numerous comments requesting significant changes to the E-Recordkeeping Rule, OSHA finally rolled out its final amendments to the Rule on January 25, 2019.  The Final Rule made the following changes:

1. Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
2. Require employers to submit their Employer Identification Number (“EIN”) along with the data.

Unfortunately, although many stakeholders submitted comments urging OSHA to add some express provision(s) to prevent the data that is collected from being published, or at least not be published along with employer-identifying information (i.e., precisely how BLS handles the injury data it has collected for decades), OSHA declined to make such changes.  Since the changes to the Rule did not affect the publication of the collected injury data, on April 1, 2019, opponents of the Rule filed an amended complaint, and most recently filed a combined brief in opposition to OSHA’s cross-motion to dismiss and in support of plaintiffs’ motion for summary judgment on July 12, 2019.  The case is currently pending.

During that time, even though the Rule still permitted publication of the data, OSHA declined to do so on its website and refused to share the data in response to FOIA requests.  The agency indicated that since it was using the data for enforcement purposes (targeting employers to inspect based on the data submissions), it was temporarily exempt from FOIA requests under the active law enforcement exemption. As a result, in Public Citizen Foundation v. Department of Labor, public interest group Public Citizen filed a lawsuit in the U.S. District Court for the District of Columbia, challenging OSHA’s justification for not publishing or producing already-collected data in response to a Freedom of Information Act (“FOIA”) request.

In June 2020, a magistrate judge recommended that the court enter judgment for Public Citizen, finding that the records are not confidential. OSHA had until July 21 to object to the magistrate’s recommendation, but rather than object, on July 20, 2020, OSHA agreed to produce the records in full, and the U.S. District Court for the District of Columbia entered an order requiring that OSHA do so by no later than August 18, 2020.

E-Recordkeeping Data 

Unfortunately, although the Trump Administration indicated that it would not publish employer data pursuant to the rule shortly after taking office and immense pressure to do, it did not withdraw this provision during the 2018-2019 rulemaking that revised the rule ever so slightly.  The battle played out in Court before the U.S. District Court for the District of Columbia in the Public Citizen case.

Less than two months later, OSHA has not only complied with Public Citizen’s FOIA request –it has also posted downloadable Excel spreadsheets of all employer injury and illness data collected for Calendar Years (“CY”) 2016, 2017, and 2018.  The data includes:

• Employer name
• Facility and address
• All of the applicable information submitted on an employer’s 300A form, including:
  • Annual average employees
  • Total hours worked
  • Number of injuries and illnesses
  • Total deaths
  • Total cases resulting in days away from work and number of days away
  • Total cases resulting in job transfer or restriction and number of days transferred/restricted
  • Total numbers of injuries, poisonings, respiratory conditions, etc.

In other words, if you submitted data on OSHA’s Injury Tracking Application for CY 2016, 2017, 2018, that information is on full display now.

Importantly, unlike OSHA’s Information System (OIS) database (formerly OSHA’s Itegrated Management Information System (IMIS)), which includes detailed inspection information, the E-Recordkeeping database does not require those seeking access to the data to input any sort of identifying information – such as employer name or inspection ID number.  Rather, the e-Recordkeeping data is completely raw, displaying all information for all employers, and it is easily searchable, sortable, exportable, etc.

Although OSHA caveats the data by explicitly stating that:

“[r]ecording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits[,]” it is a given that such data will be taken out of context, distorted, misunderstood, and used against employers by insurance companies, union organizers, competitors, the media, plaintiffs’ attorneys, prospective employees, etc.

Here is how you locate the data on the OSHA website.

• On the main Data and Statistics page on the OSHA website, click on the link for the “Injury Tracking Application” in the middle of the right-hand column under “Establishment Injury and Illness Data”.
• That will take you to a page that provides choices of years to retrieve data for from 2016-2018.  When you click on a specific year, it will automatically download an Excel Spreadsheet with the annual information.
• And here’s an easy-access link to that page with all the data.

When you open the spreadsheet, you can sort it by employer name A-Z.  Attached are excerpts from the CY 2016-2018 data including only the entries for FedEx Ground.

Interestingly, as of today, OSHA’s website still informs employers on the main OSHA Recordkeeping webpage that their Form 300A submissions are considered confidential even though that changed on September 8, 2020: